Okwaro J. L. Loroi v Dickson Muzungu & 3 others [2018] KEELRC 311 (KLR)
The bottom line
#A Kenyan court ruled an employer must prove it tried to contact a worker before calling it desertion; failing that, the dismissal was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent proved the reason for ending the claimant's employment
The 1st respondent failed to prove the reason for termination and did not follow the required procedure; the termination was deemed unfair under section 43(1) of the Employment Act
The claimant was implicated in an attempted theft at EABL premises, arrested and later released without charge. When he sought to resume work he was denied access to the EABL premises. The 1st respondent claimed the claimant deserted duty but produced no evidence of any effort to contact him to resume duty. The claimant's account that he was refused entry was therefore more plausible, and the termination of the roughly 9-month employment was unfair both substantively and procedurally.
Whether the 2nd, 3rd and 4th respondents were properly joined
The 2nd and 4th respondents were wrongly joined as there was no employer-employee relationship with the claimant and were removed from the suit
The court held that the 2nd respondent (DHL Excel Supply Chain (K) Ltd) and the 4th respondent (head of security at SABL) had no employer-employee relationship with the claimant. Their defences would not be considered and they were removed from the suit forthwith. No similar finding was made on the record regarding the 3rd respondent.
Legal principles established
#- On an allegation of desertion from duties, the burden is cast upon an employer to show what efforts it made to contact the employee to call them back to duty before dismissal
- Under section 43(1) of the Employment Act, where an employer fails to prove the reason for termination, the termination is deemed unfair
Court orders
#- 1.Removal of the 2nd and 4th respondents from the suit forthwith as wrongly joined
- 2.Award of one month's pay in lieu of notice of Kshs 15,000
- 3.Award of three months' salary as compensation for unfair termination of service, Kshs 45,000
- 4.Total award of Kshs 60,000 subject to applicable taxes
- 5.Costs awarded to the claimant
- Jurisdiction invoked
- Employment and labour relations dispute within the jurisdiction of the Employment and Labour Relations Court; Employment Act section 43(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okwaro J. L. Loroi v Dickson Muzungu & 3 others [2018] KEELRC 311 (KLR)", Case Analysis (2018). Cause No 1348 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/311/eng@2018-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.